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What’s the Dean Thinking About: The Intricacies of Consent

Posted on January 26, 2016 Elsie Stern, Ph.D.

In the New York Times Sunday Styles section a few weeks ago (of all places, and yes, I read it), there was an article about the various trainings that colleges and universities are now providing to educate students about sexual consent. Many of these trainings include scenarios and analogies that are designed to get students thinking about what “real” consent is. The scenarios raise questions like: Does consent have to be verbal? Do the participants need to consent at each step of the way? What counts as coercion?

For folks who have been involved in these conversations firsthand or have been reading about them in the media, the tension between the inevitable complexity of any given encounter and the desire for clear and universally applicable guidelines and protocols is striking. For those of us who are acquainted or immersed in rabbinic Judaism, this tension is very familiar.

That’s because an act of consent lies at the heart of the whole rabbinic Jewish enterprise. The rabbis understood the covenant at Sinai to be the foundational moment of the ongoing relationship between God and the Jewish people, and that covenant is grounded in Israel’s active consent to the covenantal arrangement. In order for the covenant to be valid, Israel must have agreed to it.

In the Torah, this consent takes the form of Israel’s repeated verbal consent. In Exodus 19:8, “All the people answered as one, saying ‘All that YHWH has spoken we will do.’” Again in Exodus 24:3 “All the people answered with one voice saying, ‘All the things that YHWH has commanded, we will do.’” And, perhaps most famously, in Exodus 24:7, we read that “’All that YHWH has spoken, we will do and we will say (na’aseh v’nishma).’”

Even with these biblical attestations, the rabbis still worried about consent and wondered: Did Israel validly consent to this covenant which would, for the rabbis, shape collective Jewish history forever after? In midrash after midrash, they replay this Sinaitic moment. In one midrash, they imagine that an angel went to each and every Israelite at Sinai and presented the terms of the covenant, and each and every Israelite replied to his/her angel, “Yes.” In another midrash, the role of the angel is played by the word of God itself and again, each and every Israelite says “Yes.” Most famous, though, is the midrash that interprets Exodus 19:17, “And they [Israel] took their places at the foot of/below the mountain,” to mean that the Israelites actually stood “under the mountain.” When God offered Israel the terms of the covenant, God suspended Mount Sinai over their heads and threatened to drop it on them if they did not agree, thus raising for the rabbis the spectre that the consent between the Israelites and God was so coerced as not to be valid.

These midrashim teach us that we have been anxious about the intricacies of consent for centuries. They tell us that when the stakes are high, we yearn for a clarity of consent that will never waver and that we will never regret, and we know at the same time how hard that degree of clarity is to achieve.